ANNUAL REPORT. for the year ending March 31, Workers Compensation Appeals Tribunal

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1 ANNUAL REPORT for the year ending March 31, 2002 Workers Compensation Appeals Tribunal

2 ANNUAL REPORT for the year ending March 31, 2002 Workers Compensation Appeals Tribunal

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4 To Her Honour The Honourable Myra A. Freeman Lieutenant-Governor of Nova Scotia May It Please Your Honour: I have the honour to submit the Annual Report of the Workers Compensation Appeals Tribunal for the fiscal year ending March 31, Respectfully submitted, Michael G. Baker, Q.C. Minister of Justice

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6 Michael G. Baker, Q.C. Minister of Justice Dear Honourable Minister: The Workers Compensation Appeals Tribunal is pleased to present its Annual Report for the fiscal year ending March 31, Respectfully submitted, Katherine F. Carrigan Chief Appeal Commissioner

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8 Contents Year One Post-Backlog: A Time for New Initiatives and For Review Report of the Chief Appeal Commissioner Tribunal Members and Staff New Tribunal Members Organizational Chart Developments in the Law Chronic Pain Reconsideration of Final Decisions of the Board Findings of Fact and Assessments of Credibility Provision of Notice of Accident to the Board Disablement Related to Shift Work Determinations as to Whether a Right of Action is Barred Extended Earnings Replacement Benefits Stress Other Decisions of Note Appeal Management Appeals and Judicial Review Proceedings from WCAT Decisions Development of Practice Directions Professional Development and Training Looking Ahead: Developing and Meeting Tribunal Goals in Budget Expenditures for the Fiscal Year Ending March 31, Appeal Statistics

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10 WORKERS COMPENSATION APPEALS TRIBUNAL 9 Year One Post-Backlog: A Time for New Initiatives and for Review The Tribunal s first full year following resolution of the appeal backlog was successful on many fronts. We were able to ensure that all appeals were heard when participants were ready to proceed and decided within the 60-day period afforded by legislation. The Tribunal remained free of an appeal backlog both during the year and at year-end, having rendered 830 final decisions. REPORT OF THE CHIEF APPEAL COMMISSIONER While responding to the interests of appeal participants in receiving timely decisions, the Tribunal also focussed on the task of ensuring that its decisions maintained a high quality standard and that issues of importance to the workers compensation system were addressed fairly and comprehensively. In attempting to achieve this goal, the Tribunal observed and applied the guidance we received from the courts on issues such as reconsideration from final decisions of the Workers Compensation Board; chronic pain; the determination as to whether a right of action is barred; the provision of notice of an accident to the Board; and assessing the credibility of witnesses. The Tribunal also held a number of panel hearings and released decisions of significance in a several key areas, including chronic pain; shift work maladaption syndrome; the determination as to whether a right of action is barred; the interpretation of stress under the Workers Compensation Act and the Government Employees Compensation Act; and exclusion of witnesses and compelling expert witnesses, among others. Decision-quality was promoted through regular discussion and review of the more important decisions issued by the Tribunal in each month, as well as by a heightened commitment to the professional development and training of Appeal Commissioners. It is noteworthy that in , the volume of active appeals from Tribunal decisions was significantly reduced. As of year-end, there were only nine active appeals, as compared with 29 appeals at the same time last year. Despite this phenomenon, overall proceedings before the courts remained high, at 244, due to two groupings of adjourned appeals or judicial review applications (See Chart 11 - Appeal Statistics). The matters in question involve chronic pain, on the one

11 10 WORKERS COMPENSATION APPEALS TRIBUNAL hand, and federal government employers, on the other. The chronic pain proceedings have been adjourned while awaiting the outcome of the appeals before the Supreme Court of Canada on appeal from the Court of Appeal s decision in Martin v. Workers Compensation Board (N.S.) et al., 2000 NSCA 126, while the matters involving federal government employers are adjourned pending the result of an appeal before the Court of Appeal concerning the scope of the Government Employees Compensation Act. Fiscally, the Tribunal met its targets in nearly all budget categories. However, the Tribunal exceeded its total budget authority by approximately $10,000, due to its participation in the Supreme Court of Canada proceedings in Martin and Laseur v. Workers Compensation Board (N.S.) et al., a matter which was unanticipated at the time the budget was originally prepared in early Overall, expenditures were reduced by $526, (31 per cent) from fiscal (See Chart 1 - Budget Expenditures). Our achievements this year were challenged by both significant increases in appeals and fluctuations in membership. Over the course of the year, the Tribunal received 1006 new appeals approximately 22 per cent more than last year (See Charts 2A and B - Appeal Statistics). At the same time, our Appeal Commissioner complement diminished from thirteen, at the beginning of April, to nine by mid-august, as Commissioners left the Tribunal to pursue other employment opportunities. The staffing issue was addressed by late October, when four new Commissioners were appointed, following a competition held in August. The new Commissioners were contributing to decision-issuance to the same extent as other Commissioners by the beginning of December, following a period of training, orientation, and mentoring. Increasing its Appeal Commissioner complement enabled the Tribunal to remain current with an increasing number of appeals. At the end of March, there were 420 outstanding appeals considered work-in-progress. These appeals awaited submissions and evidence from appeal participants. Given the increase in appeals received, the number compares favourably to the 330 appeals which remained at the end of last year (See Chart 4 - Appeal Statistics). The majority of the final decisions released this year 62 per cent were in relation to appeals received in the year. Nearly all of the remaining appeals were received in Of the pre appeals, four were from the appeal backlog. These appeals were among the 146 chronic pain appeals postponed or adjourned by the Chair of the Workers Compensation Board under

12 WORKERS COMPENSATION APPEALS TRIBUNAL 11 s.248(1) of the Act, in February The postponement or adjournment was lifted by the Board of Directors in December 2000, following the Court of Appeal s decision in Martin. The opportunity provided to the participants to make additional submissions delayed the final resolution of this small number of backlog appeals until Of major importance to the Tribunal s plans for the year was its participation in the statutory review conducted by the Workers Compensation Review Committee. The work of the Committee engaged the resources of the Tribunal and, in particular, those of the Chief Appeal Commissioner. While awaiting the outcome of the Committee s review, which was delivered to the Minister of Labour at the end of March, the Tribunal postponed other initiatives, such as strategic planning. At year-end, we looked forward with anticipation to reviewing the Committee s Report and hoped that our submissions to the Committee would assist in developing the Workers Compensation system as a whole. The Tribunal s focus in the past year has been on maintaining the appeal management system, developing operational initiatives, and providing assistance to the Workers Compensation Review Committee in its statutory review of the Workers Compensation System. Each of these areas has required significant attention on my part as well as time and commitment on the part of WCAT s Appeal Commissioners and staff. The contributions of all of our members and staff are the foundation for the successes we experienced this year. - Katherine Carrigan, Chief Appeal Commissioner Operationally, three important initiatives identified in our 2001 Annual Report were developed and supported this year: the management of appeals of WCAT decisions; development of policies and procedures; and the office of Tribunal Registrar. A fourth area, that of the office of Tribunal Research, was ably developed by the Tribunal s Research Officer in the first five months of the year, but has not received attention since the Research Officer s resignation from the Tribunal in August In the policy area, the Tribunal completed research and drafting and undertook a public consultation process which resulted in the adoption and application of guideline criteria for the extension of submission and evidence deadlines in paper reviews; the adjournment and postponement of oral hearings; and the extension of time to file Notices of Appeal. Several other Practice Directions already in development are anticipated to be in place by the end of the fiscal year.

13 12 WORKERS COMPENSATION APPEALS TRIBUNAL The Practice Directions have been of benefit to the office of the Tribunal Registrar in that two of the Registrar s primary responsibilities are to process appeals at the intake level including determining whether to extend the time to file Notices of Appeal and to decide requests to extend the submission and evidence periods and postpone oral hearings. (In addition, the Registrar is involved in the oral hearing scheduling process and in the assignment of appeals to Commissioners, along with the Tribunal s Team Leaders.) The three Practice Directions are intended to encourage fairness and consistency in the Tribunal s practice, and to promote transparency in procedural decisionmaking in the areas they address. We recognize that these determinations are of the utmost importance to appeal participants and have a major impact on the work of the Tribunal. The introduction of the Practice Directions, along with the consistency, timeliness, and quality enhancement afforded by a Registrar, is a major accomplishment of the Tribunal in the past year. Apart from the policy project and the development of a Registrar role at the Tribunal, several other undertakings of note were initiated by the Tribunal, or continued from the previous year: Written compendia canvassing Tribunal and court decisions in most areas of significance to the Tribunal s work were prepared by Commissioners and presented to their colleagues during the period from November through March. The Tribunal s previous decision-header was changed to a decision cover page format in September, following research and consultation with Commissioners and stakeholders conducted by a working group of Appeal Commissioners. The time frame for scheduling oral hearings was changed to conform with the time period for conducting paper review appeals, in August. The Tribunal began using hearing room facilities at Access Nova Scotia offices throughout the Province, in early Oral hearing scheduling was facilitated through electronic means. Discussions were initiated in early 2002 to obtain access to a commercially available, electronic decision-database service.

14 WORKERS COMPENSATION APPEALS TRIBUNAL 13 WCAT s library resources were re-organized and re-catalogued to conform to the system in use at the Department of Justice Library, beginning in April. A working group of Appeal Commissioners tasked with developing a Code of Conduct for Tribunal members was re-instated in February 2001, after a hiatus of several months following membership changes at the Tribunal. The Group is expected to present its results to Commissioners in June A working group of Appeal Commissioners responsible for developing information pamphlets for appeal participants was re-instated in early 2002, after a hiatus of several months following membership changes at the Tribunal. In addition to its own initiatives, the Tribunal was actively involved in three projects spearheaded by the Workers Compensation Board: the Electronic Claim File component of the Enterprise Architecture Project; the coordination of appeal issue tracking also part of the Enterprise Architecture Project; and the Workers Compensation Advisory Steering Committee. The Board conducted an e-file demonstration for Appeal Commissioners and staff in early January 2002, and hands on training was provided to a smaller group of Commissioners and staff later that month, in anticipation of a pilot project to explore the feasibility of adopting the Board s electronic claim file system for use in the appeals process. While originally planned to begin in February or March, the pilot project has been deferred to the fall of 2002, due to the reduced volume of appeals received in the electronic file format. In a related project, discussions were held between the Chief Appeal Commissioner and the Chief Hearing Officer in the fall of 2001 concerning the development of consistent issue categories and terminology for tracking appeal issues. These discussions are ongoing. Finally, I note the work of the Workers Compensation Advisory Steering Committee. This committee was formed in August to oversee a feasibility study for provision of training to injured workers groups representing workers before the Board and WCAT. The Committee, which included respresentation from the Workers Advisers Program, the Board, WCAT, and the Cape Breton Injured Workers Association (CBWIA), recommended, in a report released October 11, that a training program aimed at the specific needs of the CBIWA be developed. WCAT has agreed to participate in developing the program and will conduct some of the training sessions.

15 14 WORKERS COMPENSATION APPEALS TRIBUNAL The Tribunal s first year post-backlog has afforded an opportunity to introduce new initiatives to improve the quality and consistency of the Tribunal s work, while at the same time maintaining the appeal management processes which have been in place for some time. The coming year should allow these initiatives to be further refined and developed. As we enter the new fiscal year, we anticipate considering and responding to the recommendations of the Workers Compensation Review Committee, following the Committee s year-long review of the entire system. We also look forward to beginning the Tribunal s strategic planning process with the Committee s comments in mind and to continuing the Tribunal s fundamental work of conducting fair hearings and making wellreasoned decisions on appeal. Katherine Carrigan Chief Appeal Commissioner

16 WORKERS COMPENSATION APPEALS TRIBUNAL 15 Tribunal Members and Staff Gary H. Levine attended the University of Colorado where he received a business degree in 1974 and a law degree in He went into private practice in Denver from 1977 to 1988 and obtained the designation of Certified Public Accountant in In addition, Gary lectured at the community college level part-time in various law-related subjects. He emigrated to Nova Scotia and, in 1993, after taking a one-year qualification course of study and articling, was called to the bar in Nova Scotia. Gary practiced law in Nova Scotia with the private bar for several years and, in 1999, was hired by the Worker s Advisers Program. He represented injured workers until becoming an Appeal Commissioner in October NEW TRIBUNAL MEMBERS Michelle Margolian was raised in Digby. She attained her B.A. (Hons) degree in political science from Acadia University and her LL.B. from Dalhousie University. Following her call to the Nova Scotia Bar in 1992, she practiced with the Nova Scotia Department of Justice and a private law firm in Halifax. Michelle was appointed an Appeal Commissioner in August 1999 and was a member of the Tribunal s chronic pain team until her departure in May 2001 for a position with the provincial Department of Justice. Michelle returned to the Tribunal as an Appeal Commissioner in October I ve only been with the Tribunal a short while, but I have found the experience rewarding. I see Tribunal members striving toward excellence in their decision-making abilities and it gives me deeper respect for our appellate role. I look forward to my time here. - David Pearson, Appeal Commissioner David Pearson grew up in Truro, Nova Scotia, and worked in the post office there for many years before obtaining a Bachelor of Laws degree from Dalhousie University in He articled in Sydney, Cape Breton, and was admitted to the Nova Scotia Bar in David practiced law in Halifax before working full-time in the workers compensation system in 1999, as a Hearing Officer with the Workers Compensation Board. He joined the Tribunal as an Appeal Commissioner in October 2001.

17 16 WORKERS COMPENSATION APPEALS TRIBUNAL Brian Sharp grew up in New Glasgow, lives in Halifax, and comes to WCAT from the business sector. His private practice experience focused on litigation, especially family law and child protection. In addition to his law degree, Brian holds bachelors and masters degrees in business. He has volunteered extensively with groups addressing health and community development issues. In August 1999, Brian was appointed a member of the Tribunal and served on the new appeals team until taking a leave of absence to work with the Nova Scotia Human Rights Commission in November Brian returned to the Tribunal as an Appeal Commissioner in October 2001.

18 WORKERS COMPENSATION APPEALS TRIBUNAL 17 WORKERS COMPENSATION APPEALS TRIBUNAL ORGANIZATIONAL CHART Chief Appeal Commissioner Executive Assistant to the Executive Chief Appeal Assistant Commissioner Supervisor Office Services Oral Hearing Scheduling Coordinator Team Chronic Leader Pain Chronic Team Leader Pain Appeal Commissioners (3 full-time) Team Leader Environmental Illness Backlog / EIS Team Leader Court of Appeal Representative Receptionist Clerk Typists (2) Chronic Appeal Pain Team Commissioner Members 5 Appeal Commissioners Policy Analyst Appeal Commissioners (4 full-time, 2 part-time) Chronic Appeal Pain Team Commissioner Members 5 Appeal Commissioners Registrar

19 18 WORKERS COMPENSATION APPEALS TRIBUNAL Developments in the Law CHRONIC PAIN The past year has been an interesting one for the development of the law relating to chronic pain. The chronic pain team continued to tackle issues of interpretation evolving out of the chronic pain provisions of the Act (sections 10A- 10E), and received guidance in their application from several judgments of the Court of Appeal. Subsequent to the Court of Appeal s decision in Martin, and following removal of the Board s postponement of chronic pain appeals in December 2001, the Tribunal resumed the issuance of final decisions in chronic pain cases. It did so in the face of a challenge to the constitutionality of the chronic pain provisions pending before the Supreme Court of Canada and requests to stay appeals before the Tribunal that involved chronic pain. Consistent with the Court s direction, the chronic pain provisions were applied in these decisions. Perhaps the most significant legal development this year in the area of chronic pain was occasioned by the Court s comments in Huphman v. Workers Compensation Board (N.S.) et al., (2001), 191 N.S.R. (2d) 384 (C.A.), concerning a worker whose injuries occurred within the window period (March 23, February 1, 1996). The Court commented that s. 10E (applicable to window period injuries), does not bar a worker from asserting a claim for injuries other than chronic pain in addition to the chronic pain itself. Until Huphman, the Tribunal had interpreted s. 10E as precluding compensation for all injuries arising out of window period accidents leading to chronic pain, as well as those accidents which do not give rise to chronic pain. Following Huphman, the Tribunal decided a number of environmental illness cases involving workers who exhibited many symptoms and difficulties, including chronic pain, subsequent to alleged chemical exposures. The Tribunal accepted that some of these workers would be entitled to compensation for the nonchronic pain portions of their injuries and allowed the appeals on that basis. The trend toward narrowing the scope of the chronic pain provisions continued with the Court of Appeal s judgment in MacKay v. Workers Compensation Board (N.S.) et al NSCA 67 (April 20, 2001). The Court directed the Tribunal to consider the worker s request for an increase in the permanent impairment award for his back, despite the Tribunal s finding that he suffered from chronic pain in

20 WORKERS COMPENSATION APPEALS TRIBUNAL 19 his back. The decision raised the question as to whether a worker could have objective findings accounting for some of his/her pain, for which compensation could be awarded and, at the same time, exhibit chronic pain for which s/he would receive no, or limited, compensation. A fact situation almost identical to that in MacKay presented itself to the Tribunal in Decision AD (December 21, 2001). A panel determined that the worker, who had sustained a back injury in the window period for which he had received a permanent impairment award, also had chronic pain. The panel found that in addition to s. 10E benefits for chronic pain, the worker was entitled to an increase in his permanent impairment rating on the basis of the objective findings present. Decision AD effectively restricts the interpretation of s. 10E such that only the chronic pain aspects of an appeal will be found null and void. The Tribunal s reasoning in Decision AD was approved by the Court of Appeal in Lloyd v. Workers Compensation Board (N.S.) et al NSCA 18 (February 4, 2002). The Court found that s. 10E of the Act did not operate to bar a worker from asserting a claim for injuries other than chronic pain, in addition to claims for chronic pain itself. In that case the worker had been found to have chronic back pain and be entitled to s. 10E benefits. She was requesting compensation for an elbow injury sustained in the same accident. The Court considered the question as to what types of appeals in s. 10E(c) and (d) would be null and void in the face of a finding of chronic pain. It concluded that only those appeals which relate to chronic pain only are null and void. Following the Court s decision in Lloyd, an appeal to the Court of Appeal from Decision AD was withdrawn on February 6, The Tribunal again had occasion to consider s. 10E of the chronic pain provisions, in Decision AD-CA (February 28, 2002). In that case the Commissioner considered the relationship between s. 10E, which renders null and void any appeal referred to in clause (d) thereof, and s. 10G, which indicates that a worker who is entitled to receive a benefit under s. 10E is also entitled to receive medical aid. The Commissioner concluded that s. 10G is to be applied after entitlement under s. 10E has been established, and without referring back to s. 10E. Further, the worker need not establish that the pain resulted from the injury (per s. 102), but only that it commenced following the injury (per s. 10E). To require a worker to establish that medical aid is needed as a result of the injury would open up a causation inquiry not relevant within the context of benefits for chronic pain. The causal connection to be established is between the medical aid requested and the worker s chronic pain.

21 20 WORKERS COMPENSATION APPEALS TRIBUNAL Another decision which had a significant impact on chronic pain appeals was Decision AD-CA (December 31, 2001). A Tribunal panel determined that s. 10B, which limits benefits for chronic pain, does not apply until the date the worker is determined to have chronic pain. While determining, on the facts, that the worker did not meet the test for TERB between the date of accident and the date his condition was found to meet the definition of chronic pain, the panel concluded: There is no requirement in the definition of chronic pain that the pain be permanent; consequently, the worker s recovery from his injuries was not inconsistent with the previous finding of chronic pain. Chronic pain syndrome, fibromyalgia, and myofascial pain syndrome are specifically included in the definition of chronic pain in s. 10A of the Act. Proportionality of the pain to the injury and normal recovery time need not be considered once it is accepted that the worker has one or more of these conditions. Given the significance of the issue, appeals potentially raising the same issue were stayed pending the release of Decision AD-CA. Only three appeals were affected by the stay. Since Decision AD-CA, the Tribunal determines the date upon which the worker s chronic pain commenced, where it is relevant in determining the worker s entitlement to benefits other than those relating to chronic pain. RECONSIDERATION OF FINAL DECISIONS OF THE BOARD Final decisions of the Board may be reconsidered on receipt of new evidence, in keeping with Board Policy 8.1.7R1. This policy was the subject of a Tribunal reference to the Chair of the Board, under s. 247(1) of the Act, in late February The reference was made on the basis that certain questions surrounding the new evidence policy should be reviewed by the Board of Directors. The issues referred to the Chair included whether additional evidence could be considered, and whether the Board has discretion to reconsider a Tribunal decision under the policy. On April 5, the Tribunal was advised by the Chair that the appeal would not be reviewed by the Board of Directors. While awaiting the outcome of the referral, eight appeals were postponed or adjourned by the Tribunal, in accordance with the Act. These appeals have since been resolved. Following the referral, the Tribunal received guidance from the Court of Appeal, in Cherubini v. Workers Compensation Board (N.S.) et al., 2001 NSCA 81 (May 16, 2001) concerning the Tribunal s jurisdiction to adjudicate appeals from reconsideration decisions made under s. 185(2) of the Act. Referring to Board Policy 8.1.7R1, the court stated:

22 WORKERS COMPENSATION APPEALS TRIBUNAL 21 If the new evidence has met the s. 1.2 criteria and the appeal is allowed from a refusal of a reconsideration, then, subject to further rights of appeal, neither the Hearing Officer nor WCAT have jurisdiction to go any further. The Application must be remitted to Client Services, that is, the Claims Adjudicator, who must conduct a reconsideration pursuant to s. 2(b). - Cherubini v. Workers Compensation Board (N.S.) et al., at paragraph 27 Correspondingly, the Court found that the Board did not have discretion to refuse to apply the policy to evidence presented to it in support of a request for reconsideration. The Court also noted that WCAT was obliged, under s. 246, to consider any other evidence it may request or obtain. Reconciling the broad jurisdiction under s. 246 with the more limited scope of the new evidence policy, the Tribunal, in a subsequent decision, found that additional evidence received by the Tribunal during an appeal may be considered under the new evidence policy: Decision AD (June 5, 2001). While the Court did not assist the Tribunal in determining whether final decisions include Tribunal decisions in reconsideration appeals, WCAT has taken the position that its decisions fall within the scope of the new evidence policy: Decision AD (April 18, 2001). In McCarthy v. Workers Compensation Board (N.S.) et al., (2001), 193 N.S.R. (2d) 301 (C.A.), the Court held that the Tribunal s conclusions as to the credibility of witnesses was not supported by the evidence, and were tantamount to a finding of conspiracy to defraud the workers compensation system. Further, the Tribunal breached natural justice when it determined the appeal on the basis of the validity of documents which were not contested before the Hearing Officer, without first giving notice that it was considering this issue. FINDINGS OF FACT AND ASSESSMENTS OF CREDIBILITY The Court held that explanations given by counsel for the employer, to which the Board did not object, could have been considered by the Tribunal. Likewise, leading questions, to which the Board did not object and which the Tribunal did not correct, could have been considered. In a concurring decision, Justice Saunders stated that to support a finding of fraud one must have clear, cogent and persuasive evidence. Saunders, J.A., also cautioned against the use of eye contact in making credibility determinations, as they are notoriously poor tests of veracity.

23 22 WORKERS COMPENSATION APPEALS TRIBUNAL It has long been recognized that the seriousness of the allegation will dictate the sufficiency of proof required to meet the requisite degree of persuasion demanded in a civil case. - McCarthy v. Workers Compensation Board (N.S.) et al., per concurring judgment of Saunders, J.A., at paragraph 75 PROVISION OF NOTICE OF ACCIDENT TO THE BOARD In Meechan v. Workers Compensation Board (N.S.) et al., 2001 NSCA 124 (September 11, 2001), the Court rejected WCAT s finding that the appellant s claim was statute-barred by s. 83(6) of the Act, which imposes a five year limit for provision of notice of an accident to the Board, from the happening of the accident. The majority held that the applicable legislation is that which is in place at the time of the accident; however, nothing turned on this issue. The majority decision found as a fact that the worker had complied with the notice provision. The minority, concurring judgment considered that the triggering event in a request for compensation contemplated by s. 82 of the Act is that the worker s claim has come to the attention of the Board. This could occur in one of several ways: the receipt of a Report of Accident by the Board from an individual worker; the receipt of a Report of Accident from an employer; or a medical report or other documentation sent in to the Board by a physician. In Meechan, the physician s letters provided the Board with whatever notification it needed to consider the worker s claim for compensation. The notice requirements, as specified in the minority judgment, were applied in a subsequent Tribunal decision, Decision AD (November 30, 2001). DISABLEMENT RELATED TO SHIFT WORK Following a four-day hearing, a Tribunal panel issued Decision AD (January 25, 2002), recognizing that the worker suffered the results of sleep deprivation following a failure to adapt to rotating shift work. In reaching its conclusion, the panel upheld a decision of a Hearing Officer of the Workers Compensation Board, but on different grounds. The Hearing Officer had found that the worker s disablement was his underlying medical condition shift work maladaption syndrome while the WCAT panel found that the disablement was the worker s cognitive deficits or symptoms themselves, which included insomnia, lack of concentration, and sleepiness. The panel accepted that a worker is disabled from work when he or she is in a real danger of injury due to the severity of symptoms, which it found to be the case in the particular appeal. Further, the panel held that while almost all rotating shift workers experience, from time to time, symptoms related to their work, most workers can adapt. The panel concluded, however, that the worker s case is the rare one where symptoms are severe enough to be, at times, disabling.

24 WORKERS COMPENSATION APPEALS TRIBUNAL 23 A decision of the Nova Scotia Court of Appeal Metropolitan Entertainment Group v. Durnford et al. (2000), 188 N.S.R.(2d) 318 (C.A.) was applied by the panel in reaching its conclusion regarding causation of the worker s symptoms. Durnford had found a casino blackjack dealer disabled due to lateral epicondylitis, which the Court accepted was a work-related disability. The Panel disagrees with the submissions that the Worker need prove that his shift-work maladaption syndrome was caused by work. Durnford states that a Worker need only prove that she or he had symptoms severe enough to cause disablement which arose out of and in the course of employment... It is not necessary for this Panel to probe deeper and find the underlying medical reasons why the Worker developed disabling symptoms under the same conditions that may not have rendered other workers disabled. The cause of the Worker s shift-work maladaption syndrome is not relevant to the determination of eligibility for compensation under the Act. Decision AD, at pages Decision AD has been appealed to the Nova Scotia Court of Appeal. A hearing to decide leave to appeal is anticipated in June In Queen Elizabeth II Health Sciences Centre v. Workers Compensation Appeals Tribunal (N.S.) et al. (2001), 193 N.S.R. (2d) 385 (C.A.), the Court overturned a Tribunal panel s decision sustaining a civil action against several medical professionals and a hospital for allegedly negligent medical treatment following a workplace injury. The Court considered it patently unreasonable to find that the term surgical medical an excluded industry under the Act s General Regulations applied to the activities of the physicians and physiotherapists who were servants and agents of the hospital. The panel had found this aspect of the operation of hospitals, was carved out from coverage. The following conclusions were reached by the Court: DETERMINATIONS AS TO WHETHER RIGHT OF ACTION IS BARRED Considering the legislative history of ss. 29 and 256 of the Act, there existed a right of appeal to the Court of Appeal despite s. 29(4), which purports to make the Tribunal s decisions in this area final and conclusive. The right of appeal is on questions of jurisdiction, only; consequently, the Tribunal s decisions must be patently unreasonable to be overturned. The panel s decision that an employer may be subject to the Act in general terms and, at the same time, not subject to the Act on a case-by-case basis, was patently unreasonable. This conclusion made the Act unworkable.

25 24 WORKERS COMPENSATION APPEALS TRIBUNAL The Court rejected the Tribunal s conclusion that finding an employer covered by the Act and therefore immune to suit will depend on the nature of the activities of the employer s servants and agents which give rise to a cause of action. WCAT s interpretation unreasonably confused the question of whether an employee is a worker with the question of whether an employer is subject to the Act. Workers, who are covered by the Act, should be distinguished from the broader class of servants and agents, who may not be covered. WCAT s interpretation was fundamentally at odds with a core principle the historic trade-off of the workers compensation scheme. (paragraph 39). The Court considered it unfair that the hospital would be required to pay large premiums under the Act, yet could be subject to suit from covered workers in some cases. With guidance from the courts, the Tribunal continues to develop the law in areas of significance to workers and employers alike. Tribunal decisions interpreting law and policy in relation to chronic pain, reconsideration, the bar to right of action, extended earnings replacement benefits and stress, are of particular note. Consistency in these and other areas is an important goal for the Tribunal. - Katherine F. Carrigan, Chief Appeal Commissioner Several Tribunal decisions were rendered during the year in applications under s. 29 of the Act. In two of the applications, the s. 28(2), use or operation of a motor vehicle exception to the statutory bar was considered. Injuries sustained by a worker who was trapped between a loading ramp and the tailgate of a truck while loading cylinders onto the truck were found not be actionable, in Decision TPA (November 19, 2001). The accident occurred on the premises of a third party employer, and the Commissioner found that no motor vehicle belonging to the assessed employer or its employee was involved. The accident arose out of and in the course of employment, and did not arise out of the use or operation of a motor vehicle. The Commissioner also considered that if the assessed employer had been found liable it would not benefit from either the statutory bar in the workers compensation context or from its mandatory motor vehicle insurance. Such a result would be jarring, given the historic trade-off. In Decision TPA and TPA (March 25, 2002), a Tribunal panel found that the toppling over of a 50-ton carrier which was capable of being driven to a work site but, once there, was stationary while working as a crane, did not involve the use or operation of a motor vehicle. Consequently, the exception

26 WORKERS COMPENSATION APPEALS TRIBUNAL 25 to the statutory bar did not apply. The panel found that s.28(2) of the Act aimed to create an exception to the bar in those instances where an employer would benefit from mandatory motor vehicle insurance. The determination that the crane fell outside of the motor vehicle exception was based on a consideration of the two-part test in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 404, stated as follows: Did the accident result from the ordinary and well-known activities to which automobiles are put? Is there some nexus or causal relationship between the injuries and the ownership, use, or operation of the motor vehicle, or is the connection merely incidental or fortuitous? The panel also applied F.W. Argue Ltd. v. Howe (1969) SCR 354, to the effect that the purpose for which the multiple purpose or multiple use machinery is being used is determinative of its status as a motor vehicle. In Decision TPA (September 18, 2001), the worker was injured in a single-vehicle accident, while driving home from an employer-sponsored golf tournament held for the employer s customers. A panel found that the worker, who was intoxicated at the time of the accident, was acting within his employment; the action was therefore barred under s. 28 of the Act. The golf tournament was found to be reasonably incidental to employment, as was the worker s drinking, and his driving, on the day in question. Further, the drinking was not such as to take the worker outside of the scope of his duties. The most striking aspect in becoming an Appeal Commissioner is to learn how humbling an experience it is to decide appeals affecting people s lives. Sometimes it can be a struggle. I often look over at a quote I cut out from Aristotle, For the things we have to learn before doing them, we learn by doing them. - Gary H. Levine, Appeal Commissioner A number of decisions considered the timing and scope of the Board s review of extended earnings replacement benefits (EERB), under s. 73(1). For example, in Decision AD (September 27, 2001), the Tribunal held that neither s. 73(1), nor the applicable Board policy Policy precluded a review of EERB entitlement before expiry of the 36-month period where EERB had not previously been awarded. Decision AD (October 30, 2001) held that where the initial EERB decision was based on a misrepresentation of fact, review could take place at any time in accordance with s. 73(1)(d). The Board had taken Employment Insurance (EI) benefits into account in determining the worker s EXTENDED EARNINGS REPLACEMENT BENEFITS

27 26 WORKERS COMPENSATION APPEALS TRIBUNAL estimated potential earnings assessment, despite the fact that the worker was ineligible for EI for reasons communicated to Board at the time of the original EERB calculation. In Decision AD (October 31, 2001) the Tribunal found that nothing in the Act or policies prevented it, in a thirty-six month review, from revisiting the issue as to whether specific employment was suitable and reasonably available despite the absence of evidence of changed circumstances. The factors to be considered in determining whether specific employment was suitable and reasonably available, for purposes of EERB entitlement, were considered in Decision AD (February 27, 2002). The Commissioner held that where the worker was in receipt of Canada Pension Plan disability benefits, the eligibility requirements that a worker be unable to pursue any substantially gainful occupation, and that the qualifying disability be severe or prolonged, were relevant. STRESS Several decisions in the past year have considered the scope of the statutory definition of accident as it pertains to the exclusionary definition of stress. Section 2(a) of the Act excludes stress other than an acute reaction to a traumatic event. The decisions note that it was the legislature s intent to limit eligibility for benefits in stress-related situations. In Decision AD (December 17, 2001), the Commissioner held that stress due to harassment by co-workers or, indeed, the general stresses of [the] employment situation, is generally not compensable according to the definition of accident in s. 2(a). Further, even if the aggravation of a pre-existing stressrelated condition were compensable, the aggravation would have to flow from an acute reaction to a traumatic event, or perhaps specific traumatic events. This was not the case in the particular circumstances of the appeal. Without defining the exact parameters of the words acute reaction to a traumatic event, those words do not contemplate a stress or emotional reaction to the job as a whole over a period of time, including workplace harassment by a co-worker or co-workers over a period of time. Decision AD (December 17, 2001) The treatment afforded stress under GECA which contains no exclusionary provision has also been considered. In Decision AD (June 29, 2001), the Commissioner denied an employer s appeal from recognition of a stress claim under GECA, relying on the following test set out in an earlier panel decision of the Tribunal:

28 WORKERS COMPENSATION APPEALS TRIBUNAL 27 Does the evidence establish that the worker sustained a psychological injury? Did the workplace contribute significantly to the development of the psychological injury? In Decision AD (December 31, 2001), by contrast, the worker s concerns about potential harassment from a co-worker were found not to constitute personal injury by an accident, per s. 4 of GECA. Applying the same test as in Decision AD, the Commissioner considered that the worker s decision to stay off work for two weeks was a labour relations issue, more properly dealt with under the collective agreement or under the applicable occupational health and safety regime. finality of WCAT decisions: In Decision AD (February 28, 2002), a previous WCAT decision rejecting a specialist s recommendation for an increase in permanent medical impairment was considered binding on the Commissioner since an application for an increase in a PMI rating pursuant to s. 71 does not involve a re-litigation of the original award; subsequent decision-makers are bound by the final determination already made in the administration of the matter... [The decision] was not appealed and therefore the determinations found therein bind the participants and the Tribunal in this appeal. OTHER DECISIONS OF NOTE exclusion of witnesses and compellability of expert witnesses: Decision PAD, et al. (January 31, 2002) addressed two preliminary issues arising in eight environmental illness appeals scheduled to be heard together over a two-to three-week period. The panel held that the eight worker/appellants, each of whom was to testify, should be excluded until each had given testimony, recognizing that this was an exception to the general common law position with respect to the exclusion of parties. The panel also found that an expert whose report had been tendered into evidence should be made available for cross-examination. The panel had received, a few days before the planned commencement of the hearing, a television program transcript which arguably raised issues of credibility of the expert, particularly with respect to the manner in which his report had been prepared. The panel concluded that the issue could not adequately be dealt with by way of written representations, holding that to refuse to allow crossexamination would be a denial of the workers right to a full hearing.

29 28 WORKERS COMPENSATION APPEALS TRIBUNAL deterioration in hearing following removal from noise: A reference to a Hearing Officer of the Board was made in Decision RTH (December 11, 2001), where medical opinion evidence had been provided by the worker contradicting the Board s evidence that hearing will not deteriorate following removal from a noisy environment. Several other references to Hearing Officers have since been made in appeals raising the same generic medical issue. health care services: In Decision AD (December 27, 2001), the Commissioner found that homeopathic treatments could be covered by the Board in view of the evidence supporting the positive treatment effects for the worker and the absence of evidence addressing the Board s Policy criterion. Policy requires that the health care in question be consistent with generally accepted practice within the health care community....i must apply the Board policy which requires the Board to only provide medical aid which is consistent with generally accepted practice within the healthcare community. The Board has no discretion to provide treatment which is considered experimental by the medical community. - Decision AD (June 28, 2001) Decision AD (June 28, 2001), on the other hand, found, that photonic stimulator treatments were not generally accepted practice within the healthcare community since evidence had been lead supporting the conclusion that they were an experimental medical treatment. This decision has been applied consistently in subsequent Tribunal decisions dealing with photonic stimulator treatments. standard of review of discretionary decisions: The standard of review of a Board decision concerning vocational rehabilitation benefits was determined to be correctness and not, as held in previous Tribunal decisions, reasonableness : Decision RTH (February 14, 2002), applying Cherubini v. Workers Compensation Board (N.S.) et al. The Tribunal could not perform its duty if the Hearing Officer could pre-empt the statutory appeal function by rendering a decision that was erroneous but not patently unreasonable, or even simply unreasonable. The Tribunal is required by s. 246(1) to decide the appeal, in accordance with the Act, regulations and policies and on evidence and submissions similar to those available to the Hearing Officer. By clearest implication, this requires a fresh and independent adjudication unfettered by a duty of deference to the Hearing Officer, except with respect to deference arising from any fact-finding advantage enjoyed by the Hearing Officer. - Cherubini v. Workers Compensation Board (N.S.) et al., at paragraph 51.

30 WORKERS COMPENSATION APPEALS TRIBUNAL 29 survivor benefits: The Court of Appeal, in Bauman et al. v. Nova Scotia (Attorney General) et al., (2001) 192 N.S.R. (2d) 236 (C.A.), overturning a decision of the Supreme Court of Nova Scotia, upheld the constitutionality of the Act s survivor benefits provisions as they relate to widows in receipt of a survivor pension before April 17, 1985, who remarried before that date. Leave to appeal to the Supreme Court of Canada was denied in The Court of Appeal s decision is of particular relevance to the Tribunal in that Decision TAD (September 26, 2000), applied the judgment of the Supreme Court of Nova Scotia. Decision TAD was appealed to the Court of Appeal and has since been remitted back to the Tribunal, by Consent Order, on February 4, The appeal will now be re-heard in light of the Court of Appeal s pronouncements on the law. In Decision AD (November 14, 2001), s. 187 the standard of proof provision which requires evenly balanced possibilities to be resolved in the worker s favour was found to be applicable to a survivor benefits claim. in the course of employment : In Decision CA-RTH (June 27, 2001), the Commissioner found that a miner who acted as a draegerman in a mine rescue operation for another employer was not acting in the course of his employment for his own employer. The worker was neither under the control of his employer at the relevant time, in that he was away from the employer s premises, nor was he performing work for the employer s benefit. The worker s entitlement to benefits would, however, be covered by the terms of ss. 2(ae) and 8 of the Act relating to workers involved in rescue operations and temporary hire situations, respectively.

31 30 WORKERS COMPENSATION APPEALS TRIBUNAL Appeal Management APPEAL INTAKE PROCESS The position of Tribunal Registrar was formally introduced in April The Registrar is instrumental in three key areas of Tribunal appeal management: intake, assignment and scheduling, and adjournment and postponement of appeals. The appeal intake phase, which begins with receipt of the Notice of Appeal and extends to the determination of mode of hearing, setting of submission and evidence deadlines, and preparation of summaries of the appeals, consumes the majority of the Registrar s time. Appeals are processed on approximately a weekly basis, and assigned to Appeal Commissioners monthly. In the appeal intake phase, the Registrar performs the following specific functions: reviews all Notices of Appeal and accompanying Hearing Officer decisions considers requests to extend the period to file a Notice of Appeal responds to inquiries of appellants and potential appellants, as needed determines when an appeal cannot be opened due to non-compliance with the statutory appeal provisions conducts a preliminary classification of all appeals received determines whether appeals will proceed by paper or oral hearing and provides reasons for the determination in letters to appeal participants, subject to reconsideration on receipt of additional information sets deadlines for provision of submissions and evidence in appeals, consistent with standard periods developed by the Tribunal prepares summaries of pertinent information concerning appeals received, based on a review of the Notice of Appeal, Hearing Officer decision, and worker s claim file In evaluating appeals at the intake stage, the Registrar performs a preliminary classification assessment and identifies individual appeals as either chronic pain, environmental illness, assessment, employer appeal from worker claim, or other. The classification assigned is subject to change following the Appeal Commissioner s consideration of the evidence and submissions in the appeal. Appeal Commissioners perform a thorough determination of issue categories at the conclusion of each appeal, once a decision is rendered.

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